Audit, Compliance and Risk Blog

Is your employer hiring "temp" workers this summer—to serve tourists, meet cascading production deadlines, tend crops, or maybe just to fill in while permanent workers take vacations? Most employers recognize that occupational safety and health laws throughout North America assign them an Employer's General Duty to protect their own employees from workplace hazards. Some don’t remember that this duty also applies to shared employees, and even to other employers’ employees while they’re at your workplace. This month, the US Occupational Safety and Health Administration (OSHA) is re-emphasizing ongoing efforts to ensure protections for temporary workers ("temps"), extending the Temporary Worker Initiative it started in 2013.

Who Are Temporary Workers?

OSHA applies the following definition for purposes of this Initiative:

"temporary workers" are workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.

As OSHA sees it, the temp agency and the host employer are "joint employers" who share responsibility for these workers. In normal employment terms, for example, the staffing agency often controls the worker's paycheck and decides where the worker is sent. The host employer, in turn, assigns workplace tasks and controls operations in the physical workplace. Employers who share these employment responsibilities also share responsibilities for protecting the temp worker's safety and health. OSHA policy emphasizes that these employees retain their full and fundamental rights to workplace safety, despite the complications. The staffing agency and host employer must work together, with effective initial and follow-up communication and a common understanding of the division of responsibilities for safety and health.

How Does OSHA Expect Joint Employers to Protect Temp Workers?

If an OSHA inspector encounters temporary workers during a site visit, he or she must consider whether each employer has met its respective responsibility for those workers. The inspector should review any written contract(s) between the staffing agency and the host employer and determine if it addresses and allocates all responsibilities for employee safety and health.

OSHA anticipates that contract terms and responsibilities will vary depending on workplace conditions, and the parties' activities and expertise. Their duties will sometimes overlap, from convenience and/or necessity. For example:

• The staffing agency might provide general safety and health training applicable to many different occupational settings, while host employers provide specific training tailored to the particular hazards at their workplaces.

• A staffing agency with a long-term, continuing relationship with the temporary worker may be best positioned to comply with long-term requirements such as audiometric testing or medical surveillance.

• A host employer would likely be primarily responsible for complying with workplace-specific standards such as machine guarding, training and personal protective equipment (PPE) for exposure to site-specific noise or toxic substances, and incident and emergency response.

Even though OSHA expects the host employer to take primary responsibility for determining the workplace hazards and complying with applicable standards, the staffing agency also has a duty. Staffing agencies must not send workers to workplaces where they may be exposed to hazards without adequate protection and training. OSHA states "Agencies need not become experts on all potential hazards at the host's workplace, but nevertheless have a duty to diligently inquire and determine what, if any, safety and health hazards are present at their client's workplaces."

OSHA expects an active and interactive effort:

• Before accepting a new client, or a new project from a current client, both parties should jointly review task assignments and any job hazard analyses in order to identify and eliminate potential safety and health dangers and provide necessary protections and training for temp workers. 

• If information becomes available that questions the adequacy of the host employer's job hazard analyses (e.g., injury and illness reports, safety and health complaints, or OSHA enforcement), the staffing agency should make efforts to address those issues with the host employer to ensure that existing hazards are properly assessed and abated to protect the workers.

• Host employers typically have the safety and health knowledge and control of worksite operations, but the staffing agency may itself perform, if feasible, an inspection of the workplace to conduct its own assessments of hazards and/or program implementation.

• Bother employers should establish and follow hazard and injury/illness reporting and follow-up procedures.

• Both employers should make employees aware of their rights to safety, training and equipment, and to report hazards (including whistleblowing).

Self-Evaluation Checklist

Does my organization employ any temporary workers?

• Is it a host employer with temps onsite?

• Is it a staffing agency that sends temps to other employers' worksites?

Is each temporary worker covered by a contract between the staffing agency and the host employer?

• If so, does the contract address occupational safety and health responsibilities?

• Have both parties evaluated workplace hazards, and the training, PPE and other measures needed for temp workers safety?

• Has each party reviewed the other's training and other programs, to verify their existences and ensure their effectiveness?

• Has either party conducted an independent evaluation of the other's hazard evaluations and/or programs?

• Have the employers established mutual information and reporting procedures, to keep each other informed of developments?

Are processes in place to ensure each temp worker actually receives stipulated training and equipment?

If any temp worker has suffered an occupational injury or illness, were stipulated procedures followed and documented?

Where Can I Go For More Information?

• OSHA's Protecting Temporary Workers webpage 

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products,including The Complete Guide to Environmental Law and Securities Law.